I couldn't pull up the link you posted, but I feel comfortable in commenting that I thought we (America) were doing indefinite and illegal detention already. Guantanemo Bay remains an offense to all that I once thought my country stood for -- an offense to justice, decency, humanity and God.

What really kills my soul is knowing that Obama had promised to close it down, but it was the American people, we who should have been clamoring for its closure ever since the hideous thing opened, who instead insisted that Obama keep Gitmo open, because we didn't want "those people" housed in our state, we're so afraid of "them". What kind of people have we become?

We don't even know who "those people" are, do we?! I can't name one name, I don't know why they're there, I have seen no evidence, only the cover-all label "suspected terrorist". I do know of a couple of completely innocent people who were, at one time, on the "possibly bound for Gitmo" list, so there are very likely to be some innocent folks in that place, I'd suspect. But innocent or guilty, this is just plain wrong!

So, is this "indefinite military detention" even worse? Since I can't access the link, perhaps you could summarize the article for me. I'm beginning to feel that I have lived too long, because I never thought I'd live to see anything like this madness. rebecca

The NDAA and US Citizen Detention

[UPDATE (12/9/11): See here for my updated assessment as to US citizens captured abroad.]

On the day that the Senate passed its version of the NDAA, I wrote a post in the morning addressing whether the bill could be read to affirm that detention authority extends to US citizens. Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens. Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included. This amendment failed. Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway. I later went back and updated my original post to reflect this.

So where precisely does this leave things? Well, right where Senator Feinstein says it does. There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.

First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone. Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).

Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group. This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O’Hare Airport in Chicago and then eventually held for long period in military custody. He challenged that detention through a habeas petition, with mixed results. Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail). A similar case involving a non-citizen captured in the United States, Ali Salah Kahleh al-Marri, produced a similar result. In short, this is exactly what folks mean when they say that the status quo is unsettled on the question of authority to detain within the U.S.

A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations. Say, for example, that Anwar al-Awlaki had been captured in a Special Forces raid in Yemen, rather than killed in a drone strike. We’ve not had a case like that yet, so it seems to me we’d have to say the law is at least somewhat unsettled as well.

So what does the NDAA have to say about any of this? Nothing at this point, thanks to the Feinstein amendment. For better or worse, the Senate version is explicitly agnostic as to these matters. If it is enacted with that qualification, then the government will be no more and no less able than before to assert detention authority over citizens, and the courts should be no more and no less likely to rule on the matter one way or the other.

NOOOOOO!! The Feinstein Amendment died and she voted for this bill anyway?? This can't be happening. What set off the lunacy??

What is it that this bill is designed to protect? America? What kind of America? Certainly not the one I know.

Any country, including my own, that demands this kind of "protection" against its enemies IS my enemy!! Or am I allowed to say that??

Think I'll head over to a few mainstream-type boards and stir up some tempests in this stinking little teapot. This bill absolutely crosses the line and it absolutely cannot be allowed to stand unchallenged.

First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone.

Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group.

A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations.

First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone.

Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group.

A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations.

This bill is the foundation of a military dictatorship.

At the behest of the President (whoever is in that office), or based on their own "suspicions" (the grounds for which do not have to be revealed), the military can arrest and detain for an unlimited period of time, and can use "enhanced interrogation techniques" on, anyone. Anyone at all. Any time. There is no public oversight, no public explanation required, no accountability.

No evidence has to be presented to substantiate the vague charges. The person does not have the right to speak publicly in his/her own defense, nor can anyone else speak for them. All the President (whoever is in office) or military has to put on the paperwork is that they "suspect" this person of being affiliated with a "terrorist" organization or having connections to "alleged terrorists", or they "suspect" this person of "plotting terrorist activities" against the U.S. or they "suspect" this person of aiding those "suspected" of plotting terrorist activities against the U.S. government or military.

The terms used in the bill are vague and never clearly defined, which makes them doubly dangers. Where is the list of "people who must not be considered eligible for detainment" ? And even if there was such a list, how could it be established that someone met its criteria, since everything is being done in secret, behind steel doors.

Anyone who is perceived as a possible dissident, or nuisance, who is not in lockstep with government policy -- anyone whom someone in power just doesn't like, for whatever reason, can be placed in unlimited detention without explanation. Because the military or President doesn't have to produce any evidence. Their claims of "suspected terrorist" are not open to question or examination. If they say you are a suspected terrorist or associate of suspected terrorists, then you are, in effect, guilty of that charge, and you can be hidden away in a dungeon forever.

If you think this is going to be limited to Islamics or Arabs, which is egregious enough, or to people who are actually guilty of such allegations, I fear you haven't done enough homework on the Gitmo detainees, or our famous "McCarthy Era" trials.

There were plenty of McCarthy victims, but one that should strike anyone as particularly absurd is the case of old folksinger Pete Singer who, and this is in the public record, was given a TEN YEAR prison sentence by the House Committee on Un-American Activities for composing and singing the well known folk song, "If I Had A Hammer". I am dead serious -- check it out. A federal court in New York overturned the conviction.

Can you prove that all the detainees at Gitmo were/are guilty? No, you can't, because, a) the evidence for the allegations still hasn't been released, and b) because there is now public evidence that some who've been recently released were entirely innocent.

No one, not you, not me, not anyone, will be safe from the dreaded midnight knock at the door and being permanently disappeared, under the conditions of this bill. If letting a few real terrorists slip through the cracks frightens you, wait til you meet the government terrorists and visit the government concentration camps this bill will create.

Well Rebecca, certainly based upon the language of this bill it will likely end up before the Supreme Court, however, it seems to go no farther than what President Obama and Bush have already implemented. For those who are distrustful of government and who view the 'war on terror' only as a pretext to limit our civil liberties are indeed concerned and upset. I am personally more concerned with being safe from the harm of ideologically driven terrorist. In other words, I am more concerned with fascism that McCarthyism. To not be harmed is the most fundamental civil liberty in my mind. We are living in extraordinary times, which call for extraordinary measures and power.

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